Article 3 of the new law sets forth the aim or objective of consultation:

The objective of the consultation is to reach agreement or
consent between the State and the indigenous or native peoples regarding legislative
or administrative measures that directly affect them, through intercultural
dialogue that guarantees their inclusion in the State's decision-making processes and
the adoption of measures respectful of their collective rights.

Set against Article 3 is Article 15, which among other
things says:

The final decision on the approval of the legislative or
administrative measure belongs to the competent state agency. … If no agreement
is reached, it is the responsibility of the state agencies to take all the
measures that are then necessary to guarantee the collective rights of
the indigenous or native peoples.

Some early commentators have read Article 15 as
contradicting Article 3 and so either have gone on to assert that Article 15 runs afoul
of international law on the right of indigenous peoples to free, prior, and
informed consent and then suggest that it should be downplayed in favour of
Article 3 or - wishing to avoid drawing attention to it - have noted Article 3 without
mentioning Article 15.

Likely unawares, these commentators have inflated the
international legal principle of free, prior, and informed consent into an
indigenous veto or its like and thus have fallen into a trap similar to one
fallen into earlier by the Chief Justice of Canada, albeit to opposite
effect. As I note in my previous post on
Consultation and Free, Prior, and Informed Consent, drawing from the analysis
of James Anaya, United Nations Special Rapporteur on the Situation of Human
Rights and Fundamental Freedoms of Indigenous People, there is no contradiction
between saying, on the one hand, that the state should seek and even in some
cases must obtain the free, prior, and informed consent of indigenous peoples
before deciding to go ahead with plans and projects inimical to their rights and,
on the other, that the decision is the state’s to make, even if sometimes it
must, normatively speaking, result in a “No”.

Links

First Nations Sacred Sites in Canada's Courts

UBC Press, 2005

"I know of no other book that even attempts to do what Michael Ross's very careful and intelligent legal analysis accomplishes here. Ross's arguments are logically presented and clear, and he makes an important contribution to the literature."

– Peter Russell, Professor Emeritus in Political Science, University of Toronto

*First Nations Sacred Sites in Canada's Courts was shortlisted for the Third Annual George Ryga Award for Social Awareness in Literature (2005).

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About the Book

The sacred sites of indigenous peoples are under increasing threat worldwide as a result of state appropriation of control over ancestral territories, coupled with insatiable demands on lands, waters, and natural resources. Yet because they spiritually anchor indigenous peoples’ relationship with the land, they are crucial to these peoples’ existence, survival, and well-being. Thus, threats to sacred sites are effectively threats to indigenous peoples themselves.

In recent decades, First Nations peoples of Canada, like other indigenous peoples, have faced hard choices. Sometimes, they have chosen to grieve in private over the desecration and even destruction of their sacred sites. At other times, they have mounted public protests, ranging from public information campaigns to on-the-ground resistance. Of late, they have also taken their fight to the courts.

First Nations Sacred Sites in Canada’s Courts is the first work to examine how the courts have responded. Informed by elements of a general theory of sacred sites and supported by a thorough analysis of nearly a dozen cases, the book demonstrates not merely that the courts have failed to treat First Nations sacred sites fairly but also why they have failed to do so. The book does not end on a wholly critical note, however, but suggests practical ways in which courts can improve their handling of the issues. Finally, it shows that Canada too has something profound at stake in the struggle of First Nations peoples for their sacred sites.